ORDER
B.K. Taimni, Member
1. These thirteen Petitions have been filed by the Petitioner – who was the
Complainant before the District Forum, who had allowed his complaint but on an
appeal filed by the Respondent, the State Commission allowed the appeal and set aside
the order of the District Forum, hence these Petitions.
2. Brief facts of the case are that the first Respondent was property developer on
the land of one Mr. Merchant and the 2nd Respondent was the President of Pune unit
of State Government Employees Federation and a contact between the employees and
the Property Developer. On record we see three important documents; (i) Agreement
between the 1st Respondent and Mr. Merchant on developing the property owned by
the latter and its terms and conditions; (ii) MOU between the promoter/property
developer, the employees federation and the owner of land Mr. Merchant; and (iii)
Individual Agreements between the (a) Property Developer (b) the individual member
of the Federation/Government employees desirous of owning the houses in the
scheme, (c) Employee’s Federation, and (d) Mr. Merchant. Admittedly, initial
payments were made byu the members of the Scheme, but for reasons of non-availability
of loan, further payments could not be made bringing the construction
activity to a stand still beyond the plinth level. It is under these circumstances that
some members of the Scheme filed complaint before the District Forum alleging
deficiency on the part of the Respondents. The District Forum after hearing the
parties directed the Respondents to refund the collected amounts along with interest
@ 18% p.a. and cost fixed at Rs. 250/- to be paid by each of the Respondents to each
of the complainant. On an appeal filed by the Respondents it was allowed by the State
Commission, hence the petitions.
3. Admitted position is that, the given amount, as per MOU, were deposited by
the Complainants with the 1st Respondent through the 2nd Respondent. After that
further payments were to be paid as per terms of individual agreements entered into
by the parties. It is also admitted position that construction could not go on as also is
the fact that instalments payable by the complainants as per terms of the agreement
were not paid ostensibly for non-availability/sanction of loan by the State
Government to the complainants who were Government employees. Be that as it
may, the position before us is that while the District Forum ordered refund of
deposited money along with interest @ 18%, the State Commission set it aside on a
very vague, unsubstantiated and a rather holy premise that we feel that the appellant
( Respondents before us) would certainly consider the repayment of the proper
amounts to the original complainants’ (emphasis supplied) and went on to hold the
Respondent not deficient in rendering services. The question before us is as to what
amount and interest the complainants are entitled to in the facts of the case? There is
no doubt that as per Clause 7 of the agreement – time was not to be the essence of the
contact – yet this could not be interpreted to mean no period – which has to be
reasonable – Say two to three years – but at the same time the essence of the MOU
and Agreement seems to show that construction was to go on with the instalments to
be paid by the complainants, which was not done – for whatever reason, in this case
non-sanction of claim. Both the parties appear to have reneged on the terms of the
agreement. Complainants want their money back – Respondents are willing to pay
but after providing for expenses already incurred. In our view whatever assets are
created on the ground have a value. This cannot be allowed to work to the detriment
of the complainants. There is no doubt in out mind that the complainants are entitled
to refund of the total amount deposited by them as it is the Respondents who have
failed to show progress in the construction. We also see that none of the
complainants paid instalments in time and in fact could not pay. Both have a role to
play in the failure of the scheme but the fact remains that the Respondents
enjoyed the money and the complainants being low paid and employees of the State
Government were deprived of the use of the money, towards which they need to be
compensated. In normal circumstances we would have agreed with the order of the
District Forum, but keeping in view the facts and circumstances of these cases where
both the parties cannot escape their share of blame we consider
it just and suitable to
award only the interest available on term deposits at that time which we place at 11%
p.a. The Complainants – in the circumstances enumerated above – are not entitled to
any compensation for mental agony or for cost escalation in construction of the
houses.
4. In result, the Petitions are allowed – the order of the State Commission is set
aside. Respondents are directed to refund the amounts deposited by the
Complainants along with interest @ 11% p.a. from two years after the date of
respective deposits. The order be complied within eight weeks of this order –
otherwise rate of interest shall go upto 15% p.a.
5. No order as to costs.